EXHIBIT 4.4(i)
SMITHFIELD FOODS,
INC.
AMENDMENT AGREEMENT NO.
5
As of March 25, 2004
To each of the Current Holders
listed in Annex 1 attached hereto
Ladies and Gentlemen:
Smithfield Foods, Inc., a Virginia
corporation (together with its respective successors and assigns,
the “ Issuer ”) agrees with you as
follows:
1. PRELIMINARY STATEMENTS.
The Issuer issued and
sold:
(a) Seventy-Five Million Dollars
($75,000,000) in aggregate principal amount of its 8.25% Series M
Senior Secured Notes due March 2, 2006 (as they may be amended,
restated or otherwise modified from time to time, the “
Notes ”); and
(b) Twenty-Five Million Dollars
($25,000,000) in aggregate principal amount of its LIBOR Rate
Series N Senior Secured Notes due March 2, 2002 (as they may be
amended, restated or otherwise modified from time to time, the
“ Series N Notes ”);
pursuant to those separate Note Purchase
Agreements each dated as of June 2, 2000 among the Issuer and the
purchasers named in Annex 1 thereto (as amended by that certain
Amendment Agreement No. 1, dated as of December 7, 2001, that
certain Amendment Agreement No. 2, dated as of December 31, 2002,
that certain Amendment Agreement No. 3, dated as of April 4, 2003,
and that certain Amendment Agreement No. 4, dated as of October 31,
2003, each among the Issuer and the other parties listed on the
signature pages thereto, the “ Existing Purchase
Agreements ”). The register kept by the Issuer for the
registration and transfer of the Notes indicates that each of the
Persons named in Annex 1 hereto (collectively, the “
Current Holders ”) is currently a holder of the
outstanding aggregate principal amount of the Notes as of the date
hereof indicated in such Annex. The Series N Notes became due and
all then outstanding principal and interest thereon was paid in
full on March 2, 2002.
In connection with the
Issuer’s agreement to sell its Canadian subsidiaries to Maple
Leaf Foods, Inc. (the “ Transaction ”), the
Required Holders previously agreed to amend the Existing Purchase
Agreements to exclude certain effects of the Transaction from
certain of the restrictions set forth in Section 6.15 of the
Existing Purchase Agreements relating to Transfers of Property by
the Issuer and its Subsidiaries. Such exclusion is contingent upon
certain conditions, including the consummation of the Transaction
on or before April 1, 2004. Due to pending regulatory approvals,
the Issuer has requested that the Current Holders extend such date
until April 30, 2004.
2. DEFINED TERMS.
Capitalized terms used herein and
not otherwise defined herein have the meanings ascribed to them in
the Existing Purchase Agreements.
3. AMENDMENT TO EXISTING PURCHASE
AGREEMENTS.
The Required Holders and the Issuer
hereby agree to amend clause (e) of the definition of
“Smithfield Canada Transfer Conditions” set forth in
Section 9.1 of the Existing Purchase Agreements by deleting the
phrase, “such Transfer is consummated on or before April 1,
2004”, and substituting in its place the phrase, “such
Transfer is consummated on or before April 30, 2004”. Such
amendment is referred to herein as the
“Amendment”.
4. CONSENT.
The Required Holders hereby consent
to the execution and delivery of amendments to those certain
separate Note Purchase Agreements, dated as of March 1, 2002,
between the Issuer and each of the purchasers listed on Annex 1
thereto, those certain separate Amended and Restated Note Purchase
Agreements, dated as of March 31, 1999 between the Issuer and each
of the purchasers listed on Annex 1 thereto, and those certain
separate Amended and Restated Note Purchase Agreements, dated as of
October 27, 1999, between the Issuer and each of the purchasers
listed on Annex 1 thereto. Each such amendment shall be
substantially in the form of this Amendment Agreement.
5. EXPENSES.
Whether or not the Amendment becomes
effective, the Issuer will promptly (and in any event within thirty
(30) days of receiving any statement or invoice therefor) pay all
fees, expenses and costs relating to this Amendment Agreement,
including, but not limited to, the reasonable fees of your special
counsel, Bingham McCutchen LLP, incurred in connection with the
preparation, negotiation and delivery of this Amendment Agreement
and any other documents related thereto. Nothing in this Section 5
s
